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Court of Criminal Appeal 2 October 2024

Sayer-Jones v R

[2024] NSWCCA 183

Public order & justice offences
CRIMINAL PROCEDURE APPLICATION FOR STAY OF SENTENCE NOTICE DOES NOT COMMENCE PROCEEDING APPLICATION FOR STAY OF SENTENCE CUSTODIAL SENTENCE

Citation: Sayer-Jones v R [2024] NSWCCA 183
Court: Court of Criminal Appeal, NSW
Date: 2 October 2024
Judge(s): Mitchelmore JA; Basten AJA; Wright J

Background

The applicant was convicted by a jury in July 2023 of one count of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW). He was sentenced on 6 June 2024 to a two-year community correction order by the District Court. No term of imprisonment was imposed.

The day after sentencing, the applicant filed a notice of intention to appeal. Under the Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3), that notice extended the time within which he could file a formal notice of appeal by 12 months. However, no notice of appeal had in fact been filed by the time of this application.

The applicant sought a stay of his conviction and sentence pending the resolution of a proposed appeal, undertaking to file a notice of appeal by 1 December 2024. The Director of Public Prosecutions opposed the stay, primarily on the ground that the Court of Criminal Appeal had no jurisdiction to grant it.

  • Whether the filing of a notice of intention to appeal is sufficient to engage the jurisdiction of the Court of Criminal Appeal, allowing it to order a stay of sentence.
  • Whether a formal notice of appeal (or application for leave to appeal) must be filed before the Court's jurisdiction is engaged.
  • If the Court did have jurisdiction, whether a stay should be granted in the exercise of the Court's discretion.

Decision

The Court accepted the Director's primary submission on jurisdiction. The Court of Criminal Appeal is a statutory court whose jurisdiction is confined to that conferred by statute, plus such incidental powers as are necessary to exercise that jurisdiction. Consistent with the approach taken in the Court of Appeal and confirmed by High Court authority, no proceeding commences in the Court of Criminal Appeal until at least a notice of appeal or application for leave to appeal is filed in the Registry.

A notice of intention to appeal does not constitute the commencement of a proceeding. It operates only to extend the time available within which a formal appeal may be brought. Until that step is taken, the Court's jurisdiction is simply not engaged, and it has no power to order a stay of a conviction or sentence.

The Court also addressed, contingently, whether a stay would have been granted had jurisdiction existed. It found that discretionary considerations weighed firmly against the applicant. He had been offered, and declined, an expedited hearing of his proposed appeal. His sentence was non-custodial and, having served fewer than four months of a 24-month order, any prejudice from serving further conditions of the order was substantially of his own making. The Court found no basis on which a stay would have been ordered even if the jurisdictional barrier had not existed.

The Court added a further observation about the applicant's stated intention to issue subpoenas in order to place before the Court evidence not adduced at trial. The Court noted that an appeal against conviction is an appeal in the strict sense and is not an opportunity to rerun a case on fresh material.

Orders Made

  • The applicant's application for a stay of the execution of his conviction and sentence was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that its jurisdiction as a statutory court is not engaged by the filing of a notice of intention to appeal. A formal notice of appeal or application for leave to appeal must be filed in the Registry before the Court can act.
  • A notice of intention to appeal functions solely to extend the time for filing a substantive appeal. It does not commence a proceeding before the Court and does not bring the applicant within the Court's jurisdiction.
  • Where a court lacks jurisdiction to grant relief, it equally lacks jurisdiction to refuse relief on discretionary grounds. The Court noted, however, that a court below the High Court may determine it lacks jurisdiction and then contingently address what it would have decided if jurisdiction had existed.
  • In the contingent discretionary analysis, the Court found that an applicant serving a non-custodial sentence who has declined opportunities to expedite hearing of the appeal faces considerable difficulty in establishing that a stay is necessary to preserve the subject-matter of the appeal.
  • An appeal against conviction before the Court of Criminal Appeal is an appeal in the strict sense. The Court reiterated that it is not an occasion to introduce evidence that was not placed before the jury.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 67
- Crimes Act 1900 (NSW), s 319
- Judiciary Act 1903 (Cth), s 78
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1
- Uniform Civil Procedure Rules 2005 (NSW), Pt 51

Cases:
- Chamberlain v The Queen (No 1) (1983) 153 CLR 514
- Collins v The Queen (1975) 133 CLR 120
- Elliott v The Queen (2007) 234 CLR 38
- Grierson v The King (1938) 60 CLR 431
- Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
- Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
- Olsen v Mentink [2019] NSWCA 279
- Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 112
- Tait v The Queen (1962) 108 CLR 620